Monitoring First Amendment and open government issues across the commonwealth.

Tuesday, March 1, 2011

AG tells Retirement to give local watchdog data about Rockcastle County magistrates' benefits

The Kentucky Retirement Systems violated the state Open Records Act when it refused to confirm the eligibility of local-government lawmakers for state retirement benefits, the attorney general's office ruled in a decision last week.

The opinion upheld an appeal by Michael Sheliga of Rockcastle County, a local government watchdog who had asked for "records verifying the eligibility of local officials to participate in the systems," and the numbers of Rockcastle County magistrates who had received benefits and claimed full-time work that makes them eligible for benefits, but not their names, the decision said. "It is our understanding that county officials, usually the county treasurers, are required to submit monthly sworn statements to Retirement certifying that employees, including magistrates, have, in fact, worked 100 hours."

The systems had denied the request, on the basis of a law requiring individual retirement accounts to remain confidential. That applies to a record "even if it does not identify a specific member," the agency argued on appeal. It also contended that disclosing the records would pose "a substantial likelihood of member identification." In negotiations with Sheliga, the agency refused to give him records with personal identfying information redacted, and on appeal claimed it was not subject to the Open Records Act.

The attorney general's office, in the decision written by Assistant Attorney General Amye Bensenhaver, rejected all those arguments. It said the law makes confidential only "specific data regarding a current, former, or retired member," and "is not intended to cloak all other records maintained by Retirement in secrecy." It said that while Sheliga "muddied the water" by giving Retirement the names of officials whose eligibility he wanted to confirm, an open-records request "should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government," in the words of a Rhode Island court decision cited by the Kentucky Supreme Court in 2008.

The retirement agency has 30 days from the date of the decision, Feb. 21, to appeal to Franklin Circuit Court.